Open Decision Ledger · Family & inheritance law
Property division in a de facto union and a debt repaid after it ended
Supreme Court, May 27, 2021, 2020Meu15841 (judgment)
Case name: 손해배상(사실혼파기)및재산분할
Official text on the National Law Information Center
Question
May the Civil Code provisions on property division be applied by analogy to a de facto marriage, and does a debt that one partner bore during the union in forming joint assets, and repaid after the union ended, become part of the assets to be liquidated?
Holding
Yes. The Civil Code provisions on a legal marriage that presuppose marriage registration cannot be applied by analogy to a de facto union, but property division may, because it liquidates the spouses' joint estate and rests on their life together as a community. A debt one spouse owed to a third party is in principle personal and outside liquidation, save for household expenses, but a debt incurred in forming joint assets is within it, so a debt incurred in that way and repaid after the union ended is subject to liquidation unless there are special circumstances.
Summary of the holding, verbatim
그러나 부부재산 청산의 의미를 갖는 재산분할 규정은 부부의 생활공동체라는 실질에 비추어 인정되는 것이므로 사실혼 관계에 유추적용할 수 있다.
Unofficial English translation
However, the property division provisions, insofar as they bear the meaning of the settlement of spousal property, are recognized in light of the substance of the spouses' community of life, and therefore may apply mutatis mutandis to a de facto marital relationship.
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 재산분할 청구 부분을 파기하고, 이 부분 사건을 수원고등법원에 환송한다. 원고의 상고와 피고 1의 나머지 상고를 모두 기각한다.
Unofficial English translation
The judgment of the court below is reversed with respect to the claim for property division, and this part of the case is remanded to the Suwon High Court. The plaintiff's final appeal and the remaining part of Defendant 1's final appeal are dismissed.
Form of the test
Elements stated Stated in the decision
부부 일방이 혼인 중 제3자에게 부담한 채무는 일상가사에 관한 것 이외에는 원칙적으로 개인의 채무로서 청산 대상이 되지 않으나 그것이 공동재산의 형성에 수반하여 부담한 채무인 경우에는 청산 대상이 된다.
Unofficial English translation
A debt borne by one spouse toward a third party during marriage is, in principle, an individual debt that is not subject to division, except where it pertains to daily household affairs; however, where it is a debt incurred in connection with the formation of joint property, it becomes subject to division.
Factors
- 사실혼은 당사자 사이에 혼인 의사가 있고 객관적으로 사회관념상 부부공동생활을 인정할 만한 혼인생활의 실체가 있는 경우이므로
- 법률혼에 관한 민법 규정 중 혼인신고를 전제로 하는 규정은 유추적용할 수 없다
- 부부재산 청산의 의미를 갖는 재산분할 규정은 부부의 생활공동체라는 실질에 비추어 인정되는 것이므로 사실혼 관계에 유추적용할 수 있다
- 그것이 공동재산의 형성에 수반하여 부담한 채무인 경우에는 청산 대상이 된다
- 특별한 사정이 없는 한 청산 대상이 된다
Unofficial English translation
• A de facto marriage exists where the parties have the intent to marry and where, objectively and in light of social conceptions, there is a substance of married life that may be recognized as a joint life of spouses, and therefore
• among the Civil Act provisions concerning a legal marriage, those premised on the filing of a marriage report cannot apply mutatis mutandis
• the property division provisions, insofar as they bear the meaning of the settlement of spousal property, are recognized in light of the substance of the spouses' community of life, and therefore may apply mutatis mutandis to a de facto marital relationship
• where it is a debt incurred in connection with the formation of joint property, it becomes subject to division
• unless there are special circumstances, it becomes subject to division
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1995. 3. 10. 선고 94므1379, 1386 판결(공1995상, 1612)
Unofficial English translation
Supreme Court Decision 94Meu1379, 1386 decided March 10, 1995 (Gong 1995 Sang, 1612)
Decisions referred to
대법원 1995. 3. 10. 선고 94므1379, 1386 판결(공1995상, 1612), 대법원 1998. 2. 13. 선고 97므1486, 1493 판결(공1998상, 767)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
How is a loan shown to have accompanied the formation of joint assets rather than the borrower's own affairs, where the loan contract names only the borrower and the property as security?
The remand judgment of the Suwon High Court on when the Jeonju Nonghyup debt arose and what it financed will show how the rule is applied in practice. A later decision treating a debt repaid after the end of a de facto union differently, or an amendment to Articles 839-2 and 843 of the Civil Code, would require this entry to be read again.
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Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Suwon High Court, in its judgment of 9 December 2020 (2020Reu10699), held that the apartments had to be counted as a subscription right because Defendant 1 had not obtained ownership when the union ended. It found that the real property in Jeonju was not necessarily Defendant 1's separate property, and even if it were, the plaintiff had assisted in maintaining it during a union of about five years while working and caring for Defendant 1's family, so it was subject to division. It excluded the Jeonju Nonghyup loan debt from the liquidation because the Namwon Nonghyup debt had arisen after the union had ended.
Supreme Court standard: On the positive assets the Supreme Court found no error in the free evaluation or in the law of separate property and the method of division. On the negative assets it read Defendant 1 as arguing that he had borne the Jeonju Nonghyup debt during the union in forming the joint property and taken on the Namwon Nonghyup debt to repay it afterwards, so the repaid debt had to be weighed in dividing the property, and held that the court below had to examine whether, when the union ended, he was bearing the Jeonju Nonghyup debt in forming the joint property before deciding the debt falling within liquidation. Because the court below never made that examination and valued the assets without the Jeonju debt, it misread the law of what falls within liquidation and failed to examine what it had to, and that error affected the judgment. The property division part was reversed and remanded, and the rest of the appeals, including the appeal on solatium for which no grounds were stated, was dismissed.
Distinguishing conditions
- A Civil Code provision that presupposes marriage registration, which cannot be applied by analogy to a de facto union.
- A debt owed to a third party during the union that did not accompany the formation of joint assets and was not for household expenses, since it remains a personal debt outside liquidation.
- A repaid debt as to which special circumstances show it is not part of the assets to be liquidated.
Record verification notes
Fix the period of the de facto union from the pleadings and set each loan against it, and ask what property the loan was secured on and what it financed, since the Court asked whether the debt accompanied the formation of the joint assets as at the date the union ended. Gather the loan contracts, the certificate of debt and the registration records showing when each mortgage was created and discharged, and note any special circumstances the other side offers to take the repaid debt out of liquidation.
From the official text
Points at issue
재산분할에 관한 민법 규정을 사실혼 관계에 유추적용할 수 있는지 여부(적극) 및 사실혼 관계에 있는 부부 일방이 혼인 중 공동재산의 형성에 수반하여 채무를 부담하였다가 사실혼이 종료된 후 채무를 변제한 경우, 변제된 채무가 청산 대상이 되는지 여부(원칙적 적극)
Unofficial English translation
Whether the Civil Act provisions on property division may apply mutatis mutandis to a de facto marital relationship (affirmative), and where one spouse in a de facto marital relationship incurred a debt in connection with the formation of joint property during marriage and discharged the debt after the de facto marriage ended, whether the discharged debt is subject to division (in principle, affirmative)
Summary of the holding
사실혼은 당사자 사이에 혼인 의사가 있고 객관적으로 사회관념상 부부공동생활을 인정할 만한 혼인생활의 실체가 있는 경우이므로 법률혼에 관한 민법 규정 중 혼인신고를 전제로 하는 규정은 유추적용할 수 없다. 그러나 부부재산 청산의 의미를 갖는 재산분할 규정은 부부의 생활공동체라는 실질에 비추어 인정되는 것이므로 사실혼 관계에 유추적용할 수 있다. 부부 일방이 혼인 중 제3자에게 부담한 채무는 일상가사에 관한 것 이외에는 원칙적으로 개인의 채무로서 청산 대상이 되지 않으나 그것이 공동재산의 형성에 수반하여 부담한 채무인 경우에는 청산 대상이 된다. 따라서 사실혼 관계에 있는 부부 일방이 혼인 중 공동재산의 형성에 수반하여 채무를 부담하였다가 사실혼이 종료된 후 채무를 변제한 경우 변제된 채무는 특별한 사정이 없는 한 청산 대상이 된다.
Order
원심판결 중 재산분할 청구 부분을 파기하고, 이 부분 사건을 수원고등법원에 환송한다. 원고의 상고와 피고 1의 나머지 상고를 모두 기각한다. 상고비용 중 원고와 피고 2 사이에 생긴 부분은 원고가 부담한다.
Unofficial English translation
The judgment of the court below is reversed with respect to the claim for property division, and this part of the case is remanded to the Suwon High Court. The plaintiff's final appeal and the remaining part of Defendant 1's final appeal are dismissed. Of the costs of the final appeal, the portion incurred between the plaintiff and Defendant 2 shall be borne by the plaintiff.
Provisions referred to
민법 제839조의2, 제843조
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